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WHO HAS TO FIGHT THE LAW?

While the clock tells no lies, neither does it ask any questions. Instead it merely records our passing in cold indifference. And so in athletics’ ongoing fight to rid itself of the scourge of fraudulent performance the question arises, where does the responsibility for actually giving a damn lie? And, is drug testing in and of itself enough to achieve the goal?

I ask because based on the evidence of continued PED use, and the institutional corruption that allowed and benefited from it, one might conclude that the intended deterrence has not been achieved, and that some other stick or carrot may be required.

That thought was brought to mind yesterday while watching Alabama Senator Jeff Sessions appear at his confirmation hearing before Congress as Attorney General designate. During one exchange Senator Sessions said the following in response to whether fraudulent speech is protected under the First Amendment to the Constitution:

“Fraudulent speech, if it amounts to an attempt to obtain a thing of value for the person making the fraudulent speech, is absolutely fraud, and can be prosecuted.”

In the case of performance-enhancing drug use the intent is specifically ‘to obtain a thing of value’, i.e. race prize money. Therefore, when a WADA doping control officer goes over the doping control official record at time of testing, a negative declaration by the tested athlete becomes, in fact, a form of speech, and therefore should be considered a prosecutable offense if subsequent testing produces a positive finding of drug use. The same ask-and-answer should be required of appropriate coaches, managers, and federation officials, as each category has been found complicit in past PED distribution. No accusations, mind you, simply covering bases.

Some argue for the outright legalization of PED use, arguing that the current ban has fallen short of solving the problem while imposing an undue cost on events, athletes, and federations alike. But what if the penalties are, in fact, incorrectly imposed? What are the constraints on making PED use a criminal rather than sporting offense? If the sums of money involved would constitute a felony if simply stolen, why is PED use just considered cheating, and not fraud?

First of all, cheating is simply the wrong word. Cheating is peaking over at Mike Sinner’s desk to get answers on a 5th grade math test. But it isn’t fraud in the same sense as taking thousands of dollars out of somebody else’s pocket under false or deceptive pretenses.

(ADDED: Cheating is the act of deception, while fraud is the act carried out for the purpose of unlawful gain. In that sense, it might have been considered simply cheating in the old amateur days when there was no financial gain involved in racing. But once prize money was offered, the offense was elevated to fraud.)

But what would constrain athletics from such a plan of action? Or, as one cynical insider suggested, “the interest in running isn’t big enough. Nobody cares. FIFA had big money involved in sponsorships and awarding the World Cup. Running’s money isn’t at that level.”

Without going beyond the current protocols, which have proven wholly inadequate in addressing the problem, how serious is the sport in freeing itself from what is clearly an existential threat?

We can see how much damage has been done by the endless years of drug positives and institutional greed in something as simple as the hot-stove talk about Ethiopian star Kenenisa Bekele‘s coming appearance at the January 20th Dubai Marathon. While some of us still discuss the pros and cons of his possible performance in purely sporting terms, GEEKING ON KENENISA’S NUMBERS, there are others who dismiss whatever the outcome may be due to the cynical assumption that anything too good can’t possibly be on the level, and “drug-testing in Ethiopia is all but non-existent.”

When people don’t believe in the integrity of the performance, even before the performance is produced, what is there left to lose?

I could go on at length on this issue but I will focus on what is called doping and how that is enforced. I don´t believe in legalizing doping, but it is stretch for me to accept that WADA has substances on their list that can be bought in a general nutrition store, no prescription needed. This creates a problem, where we are trying to villainize an athlete for something the average fan or spectator purchases and uses without the slightest though to themselves being somehow bad.

This creates the situation where WADA is seen as a farce only doing window dressing, wasting our time and deceiving the public catching the bumbling athletes, but somehow turning a blind eye to hardcore drug-using high-profile athletes. WADA has to focus on the real hardcore drugs and ways of detecting them, instead of GNC nutritional supplements. Drawing the line on which nutritional supplements should be legal or not, serves to only dilute the effort at hand.

I have long thought that criminal penalties as in tossing people in jail would need to be in place, but even then plenty of things are illegal and does not stop people from doing them especially if the punishment is unlikely. Legal measures could certainly help since the courts could subpoena records and compel people to testify.

Another issue becomes resources. Will taxpayers put up with spending the money necessary to investigate and prosecute?

Jurisdiction is an issue. Crimes must (generally) be tried in the jurisdiction where the crime occurred. I assume athletes at meets are not paid until after doping procedures are completed (please tell me if I am wrong).

Then there is the speed factor. If you think doping cases proceed slowly now just wait until courts are involved. My guess is that CAS works a whole lot faster. On top of that you are going to need (at least in the US) guilt beyond a reasonable doubt. That can be a pretty high bar even if you have a urine sample. Of course then the testing process comes under more intense scrutiny with witness arguing about the benefits and drawbacks of different machines. Also the veracity of the claim that the substance enhances performance—ok, that one might be a positive outcome.

I am sympathetic to the idea of making it illegal. European countries have followed this path, but how many people have actually been prosecuted? Some docs were originally and later those were overturned IIRC.

Very well said Tony. I think you underestimated the value difference between say 1st place vs 2nd and 3rd place vs 4th place in major competitions. That poor fourth place finisher who would have earned a medal, cash prize, sponsor bonuses, and additional endorsements probably stands to lose six figures to a “fraud” drug cheater. Keep up your great work!

In this scientifically phenomenal day and age, I can’t believe the technology does not exist to “scan” each athlete in the moments before their respective competitions. Let the light shine on them in the presence of the gathered throngs. Make it a visible, instant validation (or not) of each athlete’s legal fitness to participate. Not only would it provide a highly escalated level of deterrence to the potential user, it would offer the public affirmation of the clean athlete not provided by a random, dark-of-the-night fluid sampling.

Wouldn’t that be cool! Have every athlete walk through a scanner as they come onto the track, then have their read-out appear up on the Jumbotron announcing their eligibility. Good call. Somebody in Silicon Valley get on that. TR

On the FIFA prosecution, it hasn’t been that silent. More than 20 people have been convicted with two people pleading guilty as recently as October.

“His conviction was the 20th to be announced by the Department of Justice in its far-reaching prosecutions of sports officials and business executives connected to FIFA, soccer’s global governing body, and affiliated regional organizations.”

and most all of the present world records… at least in the distance events… are probably fraudulent as well. Look at the time that they were set and how much they dropped… and how often… back then…. compared to before… or even now. We have the same problem as baseball w/ their records.

Excellent thoughts, Toni. Although I’ve never written them down in a coherent form, I’ve had similar ideas swimming around in my gray matter. It is fraud (or theft), and should be prosecuted from a criminal standpoint.